Employing ex-offenders - own goal for employers?

The recent media coverage and furore surrounding the case of footballer Ched Evans who was convicted of rape and imprisoned in 2012 has placed the subject of employing offenders firmly in the spotlight. Whilst his case may be in a league of its own, there are nevertheless many cases where an employer is faced with the decision of whether or not to recruit a person with a criminal record or indeed whether to dismiss an employee who is convicted or who has failed to disclose convictions.

The weight to be attached to a criminal record will depend on the circumstances. In particular, there may be employment sectors where having a certain criminal record history will effectively prevent the person from being appointed. Legislation in the form of the Safeguarding Vulnerable Groups Act 2006 makes it unlawful to employ in certain circumstances. There may also be sector specific regulations or guidance which influence the weight to be attached, for example the financial services industry. In general however, an employer is free to make their own decision and exercise discretion in determining who should be appointed. The Rehabilitation of Offenders Act 1974 prohibits an employer using knowledge of a spent conviction as grounds for excluding or dismissing a person from employment. However there is no specific penalty provided for breaking the law here. If an applicant for a job discovers that they have been turned down because of their criminal past, there is no obvious remedy available to them so in that respect, an employer has a free choice.

When it comes to dismissing an employee for their criminal record, then employers will likely be guided in the first instance by whether or not the employee has sufficient qualifying service to claim unfair dismissal, namely 2 years. It is extremely unlikely that a dismissed employee in these circumstances could allege discrimination because they would have to rely upon one of the so called protected characteristics e.g. sex, race, age, disability. Therefore, an employee dismissed for acquiring a criminal record or failing to disclose that they have one when they are appointed cannot bring a claim for unfair dismissal. Once an employee has been employed for 2 years, the employer must tread more carefully. A criminal conviction may call into question their suitability for the role but the employer should not have a knee jerk reaction to the commission of the offence and should consider what bearing, if any, the offence has on the role and their suitability for the job. The employer is also permitted to take into account any potential damage to its reputation.

Therefore, if Ched Evans is repeatedly refused employment either as a footballer or in any other line of work, he has no legal redress. Finally, employers may also be advised to take into account the reaction of other workers who are asked to work alongside a colleague with convictions for particularly serious offences. It is an interesting point whether or not an employee who resigns because they are asked to work alongside, for example, a convicted rapist or murderer, could have a claim of their own for constructive dismissal.